Request By:
Mr. Samuel R. Moore
Martin County Clerk
Courthouse
Inez, Kentucky 41224
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl Miller, Assistant Attorney General
Cheyenne J. Oldham has appealed to the Attorney General pursuant to KRS 61.880 your denial of inspection of certain public records in your custody. The records in question are described as follows:
"The warrants issued for payment of all bills on each Xerox machine used by the county. These bills would include meter usage and supplies paid to the Xerox Corporation and any repair bills on the machines. (Machines include any Xerox or copy machine specifically owned or leased by the county for its usage) .
"We would also like to see records on all monies collected from fees charged to the public (or to governmental officials) for use of the machines for personal copies and for copies of records obtained from the county offices."
By letter dated June 17, 1980, you responded to Ms. Oldham. In regard to the records pertaining to payment of bills to the Xerox Corporation, you referred her to the Fiscal Court Order Books in the Martin County Clerk's Office. In regard to the records of monies collected from fees charged for use of the copying machines you stated that the records would be open for inspection on Tuesday, July 22, 1980, at 8:15 a.m.
Ms. Oldham has appealed to the Attorney General because she believes that your response was not in accord with the Kentucky Open Records Law, KRS 61.870-61.884. Under KRS 61.880 it is now the duty of the Attorney General to give an opinion as to whether your response was in accordance with the statute.
OPINION OF THE ATTORNEY GENERAL
Two types of records were requested for inspection by Ms. Oldham. The first type we shall refer to as "expense records" because they include warrants issued for payment for bills on each Xerox machine used by the County, including meter usage and supplies paid to the Xerox Corporation and any repair bills on the machines. The second type we will refer to as "income records" because they include records of all monies collected from fees charged the public for use of the machines for personal copies.
(1) Expense Records -- Ms. Oldham states in her letter that she has made a search of the minutes of the Fiscal Court meetings and found it impossible to tell which bills listed as "office supplies" or "office machines" pertain specifically to Xerox machines. Thus, she finds your reference to the Fiscal Court minutes to be inadequate.
It is our opinion that if your office contains any records which fit the description stated by Ms. Oldham, you should have made them available for her inspection. If you have no such records, you should have so stated. Bills received, bills paid, warrants requesting checks be issued for payment of bills, cancelled checks, etc., are public records open for public inspection and should be in the custody of a public official. If they are not in your custody you should inform the requester as to who has custody of the records When a person requests to see bills and warrants, it is not a sufficient answer to refer them to the minutes of the Fiscal Court.
(2) Income Records -- Ms. Oldham's request to inspect the described records was made on June 16, 1980. Your response that the income records would be made available for inspection on Tuesday, July 22, 1980, at 8:15 a.m., clearly fails to comply with the Open Records Law. You gave no explanation for the five weeks delay in making the records available. KRS 61.872 includes the following:
"(3) If the person to whom the application is directed does not have custody or control of the public record requested, such person shall so notify the applicant and shall furnish the name and location of the custodian of the public record, if such facts are known to him.
"(4) If the public record is in active use, in storage, or not otherwise available, the official custodian shall immediately so notify the applicant and shall designate a place, time and date, for inspection of the public record, not to exceed three days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time and earliest date on which the public record will be available for inspection. "
It is our opinion that you have not complied with the Open Records Law in regard to the request to inspect both the expense records and the income records described above, and that you should immediately make a further response and allow inspection of the records or explain why inspection cannot be made.
As provided by KRS 61.880, we are sending a copy of this opinion to the requester. KRS 61.880(5) provides as follows:
"If the Attorney General upholds, in whole or in part, the request for inspection, the public agency involved may institute proceedings within 30 days for injunctive or declaratory relief in the circuit court of the district where the public record is maintained. If the Attorney General disallows the request or if the public agency continues to withhold the record notwithstanding the opinion of the Attorney General, the person seeking disclosure may institute such proceedings."
If a dispute over the inspection of a public record goes to the circuit court and the court finds that the agency willfully withheld the record in violation of the Open Records Law, the court can award cost, including reasonable attorneys' fees, to the requester, and can also award a penalty of up to $25 for each day that the requester was denied the right to inspect or copy the public record. KRS 61.882(5).